Torts Flashcards
Battery
- Intentional infliction
- harmful/offensive contact
Intentional Torts
battery
assault
IIED
false imprisonment
trespass to land
trespass to chattels
conversion
Assault
- Intentional
- causing apprehension of
- imminent
- harmful/offensive contact
IIED
- intentional/reckless infliction by
- extreme and outrageous conduct, causing
- severe emotional distress
- third-party liability
False imprisonment
- intentional
- confinement/restraint
- bounded area
- no reasonable means of escape
- P aware or harmed
Trespass to land
- intentional
- physical invasion of
- real property of another
Trespass to chattels
- intentional
- interference with
- P’s use or possession
- in a chattel
Conversion
- trespass to chattels and
- substantial interference
- D pays full value
Intentional Torts Defenses
- Consent
- Self-defense
- Defense of others
- Defense of property
- Recapture chattels
- Shopkeeper’s privilege
- Arrest
- Necessity
Consent
- Express
- Implied
Self-defense
Reasonable force
Defense of others
- Reasonable belief the other person could defense
- reasonable force
Defense of property
- reasonable force to
- prevent property tort
Recapture chattels
- fresh pursuit
- reasonable force
- wrongful taking
Shopkeeper’s privilege
- Temporarily detain
- Reasonable belief stolen
Arrest
- D restrains P by
- exercising legal rights
Necessity
- reasonably necessary
- to prevent greater harm
- Public: no damages
- Private: pay for damage
Negligence
- Duty of care
- Breach
- Causation
- Damages
Duty of care
to whom the duty is owed:
- Foreseeable plaintiffs only (Cardozo)
- Everyone (Andrews)
General standard - “Reasonable person”
Special standards
- no affirmative duty to act unless 1) special relationship; 2) caused danger; 3) volunteer assistance.
- professional
- children
- bailment
- special landowner standard
- negligence per se
Breach
- Failure to meet the standard of care
- res ipsa loquitur
Actual cause
- But-for test
- alternative causes (only one at fault)
- substantial factor (joint tortfeasors)
Proximate cause
Reasonable foreseeability
eggshells plaintiff
intervening causes
Damages
- actual injury required
- duty to mitigate
NIED
P physical injury
P zone of danger
Defenses
- contributory negligence
- comparative negligence
- assumption of risk
Strict liability
- animals- wild animal / domestic if known propensity
- dangerous activities - 1) high risk of serious harm; 2) cannot eliminate risk with reasonable care; 3) not common in the area; 4) balancing between the danger and the benefit of the activity
Nuisance
- Private nuisance: 1) substantial, unreasonable interference with 2) use and enjoyment of property
- Public nuisance: 1) substantial, unreasonable interference with; 2) health, safety, property rights of community; 3) private party can recover with different damages/special harm
Product liability theories
- strict liability
- negligence
- warranties
- misrepresentation
- intentional
Fraud/misrepresentation elements
- misrepresentation of fact
- scienter (knowing/reckless)
- intent to induce reliance
- causation
- justifiable reliance
- pecuniary damages
Negligent misrepresentation
- Same as fraud/intentional misrepresentation
- D acted in business or professional capacity; and
- D acted with no reasonable grounds
Defenses to nuisance
- Legislation
- Assumption of risk/comparative negligence
- Coming to nuisance
Defamation
Common Law
- Defamatory statement
- of or concerning P
- Publication to 3rd party and understand
- causation
- damages: presumed damages for libel; must prove special damages for slander.
Constitutional requirements apply for statements of public concern:
- fault in publication by D must be made by malice for public figure P; negligence for private figure P.
Defamation defenses
consent
truth
privilege - absolute/qualified
misappropriation
- P’s name or picture
- unauthorized use for
- D’s commercial advantage
Privacy rights
- misappropriation
- intrusion on P’s solitude
- false light
- publicity of private life
Intrusion upon seclusion
- Intrusion of private affairs
- reasonable expectation of privacy
- highly objectionable
False light
- public placement
- in false light
- highly objectionable to reasonable person
Publicity of private life
- publicized details of
- private life
- highly objectionable to reasonable person
Malicious prosecution
- legal proceedings
- end in P’s favor
- no probable cause
- improper purpose
- damages
Abuse of process
- Wrongful use/process
- ulterior purpose
- willful act/wrongful manner
Interference with business relations
- Contract or business expectancy
- D’s knowledge
- Intentional interference
- damages
Defense: fair competition
Vicarious liability
- scope of employment
- employee vs. independent contractor
Multiple defendants
- joint and several liability
- contribution
- indemnity
Survival rights
COA survives death
Wrongful death
next of kin can recover
Tortious interference with family relationships
loss of consortium or services for spouse or child
